This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

26 July 2007

Impeach Gonzales Now

We have an awful problem in this country. We have an imperial executive the likes of which we have never seen. Nothing in our history even comes close.

Let’s review just the worst of the offenses. George W. Bush has claimed a constitutional right to spy on American citizens at will. He has thrown citizens and aliens in jail indefinitely, without recourse to any form of justice, providing minimal justice only when forced to do so by the courts. He has claimed the right to continue this illegal incarceration whenever he thinks his victims are “enemy combatants.” He has “rendered” aliens, including at least one Canadian citizen, secretly to foreign governments for jailing and torture abroad. He has run secret prisons abroad.

As for checks and balances, George W. Bush has not just thumbed his nose at Congress. He has mooned it. He has claimed the power, through “signing statements,” to modify, repeal and ignore legislation duly passed by Congress and signed by him. He has repeatedly refused to testify, or to allow other executive officials to testify, before Congress on matters of undoubted congressional authority. He has perverted our Department of Justice into a political organ like their counterparts in Russia and China, and he has claimed the power to deny Congress information about his doing so. In other ways as well, he has repeatedly asserted the power to keep the people’s business secret from the people and their representatives.

In these respects and others, George W. Bush has claimed the power to rule alone, as monarch in all but name. In fact the foregoing list of grievances against him resembles the preamble to our Declaration of Independence, which listed our Founders’ grievances against King George III.

As vice president, Dick Cheney has participated in all these offenses and has instigated many of them. Has also has claimed that his own office enjoys special powers, so that he is immune even from legal restraint that applies generally to the executive branch.

These transgressions are enormous. They are not mere legal technicalities. They go to the heart of our democracy, our Bill of Rights, our checks and balances, and our continuing hope for real popular government.

Bruce Fein was an associate deputy attorney general in the Reagan Administration. He is no liberal or Bush hater. Yet he has warned repeatedly against allowing these gross usurpations of power to harden into precedent that later leaders will follow. He has recommended impeaching both George W. Bush and Dick Cheney.

But Congress, as Fein puts it, remains “invertebrate.” It has allowed these two men to run away with our government without even putting up a fight. Not only has Speaker of the House Pelosi shown no backbone. She has taken impeachment “off the table.”

Besides failing to understand how these crimes put our democracy at risk, there can be only one reason for this spinelessness. Congress apparently fears to meddle with the executive—even one claiming monarchical powers—in wartime. It balks at causing the same executive paralysis that the Republican Congress happily caused Bill Clinton because our current times appear to be more dangerous than his.

Yet if Congress wants not to become an historical irrelevancy, it must find some way to send a real shot across this imperial executive’s bow. Attempting to hold a handful of former, lower-level executive appointees in contempt of Congress for refusing to testify is not an effective strategy. The president’s own attorney general must prosecute the contempt charges, so they may end up as meaningless gestures. Or they may be delayed until the end of Bush’s term.

There is only one way for Congress to send the executive an effective message. It can do so without in the least intruding on the president’s war-making or foreign-policy authority. Congress can begin impeachment proceedings against Alberto Gonzales. Here are five reasons why it should do so now.

First, Gonzales already has participated in grave crimes against our Constitution and Congress’ legitimate role in democratic governance. He has mooned Congress repeatedly. He has refused to answer questions put to him by members, or he has incredibly claimed failure of memory, well over 100 times.

Many members of Congress and most of the public, including this writer, have a firm conviction that Gonzales has lied to Congress many times. His office imposes on him a special burden to uphold truth, honesty and integrity in government. That burden only makes repeated lying more outrageous.

Mere lying to Congress and the people has not been Gonzales’ only grave offense. Strong circumstantial evidence shows that he ordered or permitted the firing of United States attorneys for political purposes. Nothing he has said has even begun to refute that evidence. On the contrary, his constant, inartful evasion and prevarication confirm it. Whether his ordering or allowing political firings of public prosecutors constituted a violation of some specific federal statute is beside the point. It was a “high Crime and Misdemeanor” against the rule of law and democratic government—a firm and decisive step toward American gulags.

Second, Gonzales’ case has nothing to do with national security or the president’s power over war and foreign policy. His crimes involve only our domestic justice system and executive officials’ obligation to inform Congress honestly about its governance and operation. No one could credibly claim that impeaching Gonzales would impede our war effort or impair our national security.

Third, impeaching Alberto Gonzales will not impair effective government. He is self-evidently one of the least competent and most politically corrupt Justice Department officials in our nation’s history. If his tenure in office remains unchallenged, the Department will have extraordinarily inept and corrupt leadership for the next eighteen months. The impeachment process could hardly make things worse.

Fourth, Gonzales has become a ludicrous and universally despised figure. He is a travesty of a leader and an embarrassment to us at home and abroad. Except for the president, no one has spoken up for him, and even the president apparently has supported him only out of personal loyalty. No one in Congress will lose any political capital for voting to impeach him. If members of Congress cannot find the courage to impeach such a ridiculous cipher, then they might as well give up any claim to co-equal power and declare themselves a debating society.

Fifth and most important, the other branches cannot and will not give Congress the spine it lacks. The executive may fail or refuse to prosecute Congress’ contempt citations. The courts might not see the executive’s exaggerated claims of “executive privilege” Congress’ way. Or the courts might duck the issue entirely, characterizing executive privilege as a “political question” and forcing Congress to show some backbone, but only after additional delay.

Our Founders provided a clear path out of this dilemma. They gave Congress the power to remove “all civil officers of the United States” by impeachment and conviction.

In impeachment proceedings Congress is entirely self-sufficient. It indicts executive officers (in the House) and tries them (in the Senate), completely independent of the judiciary. Its impeachment decisions are unreviewable. Congress, not the courts, decides what is a “high Crime and Misdemeanor” for impeachment purposes. Our Founders intended impeachment to operate precisely that way—as a principal feature of our checks and balances independent of the other two branches.

Impeaching Alberto Gonzales would improve our Department of Justice, our rule of law, our checks and balances, and our democracy. Without affecting national security, that single act would serve notice upon all executive officials that they, too, must show some spine and respect for the rule of law and democratic principles, even when the president calls. If Congress wants the executive to take its requests for information seriously, it is going to have to use the only independent power that it has to enforce its will.

As for the Department of Justice, it is a big and robust bureaucracy with a huge corps of honest and dedicated professionals. It would survive Gonzales’ preoccupation and removal even if he were an effective and competent leader, which he is not. In any event, a serious effort to impeach Gonzales would likely lead to his resignation, thereby curtailing any disruption of the Department’s normal functioning.

If Congress cannot find the courage to impeach and remove this walking insult to dignity, integrity, competence, and justice, then we might as well kiss our democracy goodbye. If nothing else, we should then stop criticizing Vladimir Putin, for our organs of justice and our manner of running them would be little better than his.

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About Me

This blog reflects a quarter century of study and forty years of careers in science/engineering (7 years), law practice (8 years) and law teaching (25 years). A short bio and legal publication list appear here. My pre-retirement 2010 CV appears here.
As I get older, I find myself thinking more like an engineer and less like a lawyer or law professor. Our “advocacy” professions—law, politics, public relations and advertising—train people to take a predetermined position and support it against all opposition. That’s not the best way to make things work—which is what engineers do.
What gets me up in the morning is figuring out how things work and how to make them work better, whether they be vehicles, energy systems, governments or nations.
This post explains my respect for math and why you’ll find lots of tables and a few graphs and equations on this blog. If you like that way of thinking, this blog is for you.